Citation Nr: 0021674
Decision Date: 08/16/00 Archive Date: 08/23/00
DOCKET NO. 96-22 172 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUES
1. Entitlement to service connection for memory loss and
fatigue, to include as due to an undiagnosed illness.
2. Entitlement to the assignment of a higher disability
rating for a left knee chondromalacia, currently rated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Jonathan B. Kramer, Associate Counsel
INTRODUCTION
The veteran had active service from February 1983 to February
1986 and from October 1989 to April 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 rating decision rendered
by the Regional Office (RO) of the Department of Veterans
Affairs (VA) in Milwaukee, Wisconsin, which denied
entitlement to service connection for memory loss and
fatigue, and granted service connection and assigned a
noncompensable rating for left knee chondromalacia. The
veteran appeals for the initial assignment of a higher
rating. The veteran was scheduled for an RO hearing in
August 1999, but he failed to appear.
During the pendency of this appeal, a March 1997 RO
determination increased the veteran's disability rating for
his left knee chondromalacia to 10 percent disabling,
effective from the date of receipt of his reopened claim for
service connection. Inasmuch as the veteran has continued
to express dissatisfaction with this rating, has otherwise
not withdrawn his appeal, and in light of the fact that the
maximum schedular disability rating has not been assigned to
date, the appeal continues. See AB v. Brown, 6 Vet. App. 35,
38 (1993).
FINDINGS OF FACT
1. The veteran had active duty service in the Southwest Asia
Theater of Operations during the Persian Gulf War.
2. The veteran's memory loss and fatigue have been
attributed to a dysthymia, a diagnosed condition; they are
not due to an undiagnosed illness, nor are they causally
related to any incident of active duty.
3. The veteran's left knee chondromalacia is manifested by
X-ray evidence of slight subluxation and, as of June 11,
1998, limitation of extension to 9 degrees after repeated use
with pain on motion; there is no medical evidence of
instability, more than slight subluxation, limitation of
flexion, or any appreciable limitation of extension prior to
June 11, 1998.
CONCLUSIONS OF LAW
1. Memory loss and fatigue were not incurred in or
aggravated by active service, nor may they be presumed to
have been incurred therein. 38 U.S.C.A. §§ 1110, 1117, 1131,
5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.317 (1999).
2. The schedular criteria for a disability rating in excess
of 10 percent for chondromalacia of the left knee with
subluxation have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R.§§ 4.1-4.14, 4.71a, Diagnostic Code
5257 (1999).
3. The schedular criteria for a separate 10 percent rating
for limitation of extension of the left knee due to
chondromalacia, effective from June 11, 1998, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.§§ 4.1-4.14,
4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Fatigue and Memory loss
The service medical records (SMRs) are devoid of any
indication that the veteran complained of, was diagnosed
with, or treated for, memory loss or fatigue.
The relevant post-service medical records begin with a May
1992 VA general medical examination report, which does not
mention any complaints or findings relevant to the existence
of memory loss or fatigue.
A May 1992 VA non-tuberculosis diseases and injuries
examination report explains that the veteran complained of
respiratory problems and that he reported slight exposure to
smoke from burning petroleum while in Iraq. The veteran did
not complain of any memory loss or fatigue, nor did the
examiner record any such signs or symptoms.
An October 1994 VA Persian Gulf War screening report and
associated examination report, prepared for the purpose of
entering the veteran into the Persian Gulf War Registry, note
that, among other things, the veteran complained of fatigue
and poor memory. Contemporaneous VA consultation records
with the neurology and psychiatric clinics provisionally
diagnosed the veteran with a history of depression, a history
of memory loss, and a history of chronic fatigue. An October
1994 letter to the veteran from a VA physician explaining the
results of the October 1994 examinations referred to above
states that "[b]ased upon currently acceptable medical
principles, there is possible indication that [the] history
of memory loss . . . [and] history of chronic fatigue . . .
may be related to hazardous environmental exposures from your
service in the Persian Gulf itself."
A July 1997 letter from the United States Department of
Defense to the veteran notified him that based upon where and
when his unit was located in Iraq during the Persian Gulf
War, he may have been exposed to low levels of nerve agents.
It was noted that such low level exposure would be unlikely
to cause any long-term health problems.
A July 1998 training evaluation from the veteran's employer
comments that the veteran had problems remembering, and that
he did not appear to have his heart in the job.
A March 1999 VA chronic fatigue syndrome examination report
recounts the veteran's complaints of memory loss and fatigue.
The veteran feels he could sleep all day, and does not feel
rested upon awakening. He has nevertheless been able to
maintain a 40-hour a week job, and significant work loss due
to fatigue was denied. A general systems examination was
performed. The assessment was "[c]hronic fatigue syndrome.
The veteran does not meet the criteria for [chronic fatigue
syndrome."
A March 1999 VA psychiatric examination report included an
extensive review of the veteran's medical records and
history. The veteran complained of fatigue; that he lacked
energy and that he felt he never got enough sleep. The
veteran also complained of memory problems. Objectively, the
veteran was described as mildly dysphoric. The examiner
administered a full battery of neuropsychological tests.
Memory testing was average or above, except for confrontation
naming, which was in the low average range without paraphasic
errors. The examiner commented that personality testing
revealed that the veteran suffers "from a great degree of
somatic discomfort, pain, and fatigue. He may have a
tendency to overreact to physical dysfunction. The [veteran]
may resist attempts to explain his symptoms of fatigue and
other somatic problems in terms of emotional or psychological
factors." It was further noted that his personality profile
shows a "lack of insight and self understanding" on the
part of the veteran. The examiner also stated that there
were "no indices of organic brain dysfunction." The
veteran was diagnosed with dysthymic disorder, and that his
symptoms of hypersomnia, low energy, pervasive fatigue, and
poor memory are believed to be due to his dysthymic disorder.
The remaining relevant evidence consists of the veteran's
variously dated written statements, and the written
statements of the veteran's wife and mother, in which it is
contended that the veteran has suffered from memory loss and
fatigue since serving in the Persian Gulf War.
The veteran contends, in essence, that his memory loss and
fatigue are due to his exposure to hazardous environmental
toxins from Persian Gulf War.
The law provides that a veteran is entitled to service
connection for a disability resulting from a disease or
injury incurred or aggravated while in service. 38 U.S.C.A.
§ 1131 (West 1991); 38 C.F.R. § 3.303 (1999). That an injury
occurred in service alone is not enough; there must be
chronic disability resulting from that injury. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Furthermore, service connection may also be established for a
veteran who exhibits objective indications of a chronic
disability resulting from an undiagnosed illness, which
became manifest either during active service in the Southwest
Asia theater of operations during the Persian Gulf war, or to
a degree of 10 percent or more not later than December 31,
2001. To fulfill the requirement of chronicity, the illness
must have persisted for a period of six months. 38 U.S.C.A.
§ 1117 (West 1991); 38 C.F.R. § 3.317 (1999).
A well-grounded claim for compensation under 38 U.S.C. §
1117(a) and 38 C.F.R. § 3.317 for disability due to
undiagnosed illness generally requires the submission of some
evidence of: (1) active military, naval, or air service in
the Southwest Asia theater of operations during the Persian
Gulf War; (2) the manifestation of one or more signs or
symptoms of undiagnosed illness; (3) objective indications of
chronic disability during the relevant period of service or
to a degree of disability of 10 percent or more within the
specified presumptive period; and (4) a nexus between the
chronic disability and the undiagnosed illness. VAOPGCPREC
4-99.
The Board initially finds that the veteran's claims for
service connection for memory loss and fatigue as due to an
undiagnosed illness are well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, he has presented claims
which are plausible. The Board is satisfied that all
relevant evidence has been properly developed and that no
further assistance is required to comply with the duty to
assist as mandated by 38 U.S.C.A. § 5107(a).
In reviewing the medical evidence in the claims file, the
Board finds that the veteran's symptoms of memory loss and
fatigue have been attributed to a diagnosed psychiatric
condition, a dysthymic disorder. Although fatigue is
recognized under 38 C.F.R. § 3.317(b)(1) as a sign or symptom
for certain disabilities due to an undiagnosed illness
acquired due to service in the Southwest Area Theater of
Operations during the Persian Gulf War, the veteran's
fatigue, memory loss, and other general somatic symptoms, are
shown by the medical evidence to be causally linked to his
diagnosed dysthymic disorder.
There is no medical evidence of a nexus or link between the
veteran's current memory loss or fatigue, and his period of
active duty service, to include service in the Southwest Area
Theater of Operations during the Persian Gulf War. Although
a VA physician sent a letter to the veteran stating that his
symptoms may be related to hazardous environmental exposures
from Persian Gulf War service, such a statement is
speculative in nature. The Board observes that the Court has
held that medical opinions which are speculative, general or
inconclusive in nature cannot support a claim. See Obert v.
Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet.
App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521,
523 (1996). Even affording some weight to the opinion, the
Board finds that it is outweighed by the psychiatric opinion
that the veteran's symptoms are due to a dysthymic disorder,
as the latter opinion was not speculative in nature.
In variously dated written statements, the veteran, his
mother, and wife, contend that his memory loss and fatigue,
are related to service, specifically as a result of his in
the Southwest Area Theater of Operations during the Persian
Gulf War, and not to any psychiatric disorder, such as
dysthymia. However, being laypersons, they are not competent
to give an opinion regarding medical causation or diagnosis
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
II. Left Knee Chondromalacia
A person who submits a claim for benefits under the laws
administered by VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. See
38 U.S.C.A. § 5107(a) (West 1991). The veteran is appealing
the original assignments of disability rating following
awards of service connection, and, as such, the claims for
the increased ratings are well grounded. 38 U.S.C.A.
§ 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
Moreover, the severity of the disabilities at issue is to be
considered during the entire period from the initial
assignments of disability ratings to the present time. See
Fenderson v. West, 12 Vet. App. 119 (1999).
Once a claimant has presented a well-grounded claim, VA has a
duty to assist the claimant in developing facts that are
pertinent to the claim. See 38 U.S.C.A. § 5107(a). The
evidence of record includes the following: the veteran's
service medical records; VA examination reports, radiology
reports, and treatment records; private medical records; the
veteran's written statements; and the lay statements of
family members. The Board finds that all relevant facts have
been properly developed, and that all evidence necessary for
an equitable resolution of the issue on appeal has been
obtained. Therefore, no further assistance to the veteran
with the development of evidence is required.
Pursuant to a March 1995 RO rating decision, the veteran was
initially service-connected for a left knee chondromalacia
and assigned a noncompensable disability rating. As was
noted previously, the RO rendered a March 1997 determination
increasing the veteran's disability rating for left knee
chondromalacia to 10 percent, effective in February 1996.
This 10 percent disability rating has remained in effect ever
since.
Under the laws administered by VA, disability ratings are
determined by applying the criteria set forth in VA's
Schedule for Rating Disabilities, which is based on the
average impairment of earning capacity. See 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. In addition, the evaluation of the same disability
under various diagnoses, and the evaluation of the same
manifestations under different diagnoses, are to be avoided.
C.F.R. § 4.14. In order to evaluate the level of disability
and any changes in condition, it is necessary to consider the
complete medical history of the veteran's condition.
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
An October 1994 VA radiology report revealed a normal left
knee, with no osseous abnormality, joint effusion, or
degenerative changes.
A December 1996 VA joints examination report noted that the
claims folder was not available for review. The veteran
complained of increased left knee pain, which becomes
aggravated when climbing stairs or with prolonged walking or
standing. He also complained of weakness and instability
associated with frequent flare-ups. Objectively, his gait
was normal, and there was no effusion, deformity, patellar
subluxation, or instability. There was minimal crepitus of
the left knee, but no objective evidence of pain. Range of
motion of the left knee was to 2 degrees of extension and to
134 degrees of flexion. Repetitive motion of the left knee
showed no evidence of fatigability, weakened motion, or
incoordination. The examiner recommended only minimal, if
any, functional limitation on the veteran due to his left
knee disability. The diagnosis was left knee chondromalacia
of the left patella. An associated VA radiology report of
the left knee revealed slight lateral subluxation of the left
patella that could be predisposed chondromalacia; no other
abnormality was seen.
An October 1997 VA orthopedic consultation states that the
veteran was referred to physical therapy for his
patellofemoral joint problem.
A June 11, 1998 VA joints examination report notes that
although the veteran's claims folder was not available for
review, certain VA records relevant to the veteran's
disability, including a copy the previous December 1996
examination report, were reviewed. The veteran complained
that his left knee pain had increased, although it is not
present on a daily basis. The veteran described that his
pain comes every other two days, and lasts for about two days
before subsiding, and that he does have pain after exertion
or being on his feet at work. Climbing up and down stairs or
prolonged walking or standing was also difficult for the
veteran. The veteran did not report any episodes of
instability, giving-way, or locking. Objectively, the
veteran displayed a slightly antalgic gait consistent with
left knee pain and his current complaints. There was no
deformity of the left knee or atrophy of the left quadriceps,
and there were no physical findings consistent with
constitutional symptoms of inflammatory arthritis. There was
objective evidence of pain on active motion only, and
crepitus was detected when pressure was placed over the left
patella. Repetitive range of motion testing was conducted:
on the first test, extension was to 2 degrees and flexion was
to 128 degrees; but by the fifth test his range of motion
diminished significantly to 9 degrees of extension and to 126
degrees of flexion. The examiner commented that "[w]hen the
veteran went through repetitive range of motion there
appeared to a slight subjective increase in weakness and
fatigability with repetitive motion but there was no change
in coordination," as demonstrated by normal heel shin
testing before and after range of motion testing. The
examiner went on to opine that:
[i]n my medical opinion I would apply some
functional limitation to this veteran secondary to
his service[-]connected left knee condition. A
contemporaneous VA radiology report of the left
knee found no significant osseous abnormality. I
would limit lifting and carrying to 40 pounds and
pushing and pulling to 75 pounds. I would put
moderate restriction on climbing, balancing, and
working in high places. I would put marked
restriction on kneeling, crouching, squatting, and
crawling. I would put a minimal restriction on
prolonged standing and walking based on today's
examination as well as a minimal restriction on
turning (allow the veteran to stand or walk greater
than two hours as tolerated). I would put minimal
restriction on outside work, work in extreme cold
and work where there are sudden temperature
changes. I would put mild to moderate restriction
for work around cluttered and slippery floors as
well as around moving objects, hazardous equipment
and explosives. I would ask the veteran work in a
well-lit environment secondary to the left knee.
There is no history or evidence of constitutional
symptoms secondary to inflammatory arthritis
secondary to a left knee condition. There are no
episodes of dislocation or recurrent subluxation of
the left knee. As noted earlier there are no
flare-ups. The veteran has not had surgery on the
left knee since the last compensation and pension
examination.
The diagnosis was chondromalacia patella of the left knee,
with a slight antalgic gait or limp, and pain strictly with
active range of motion. A contemporaneous VA radiology
report of the left knee showed no significant osseous
abnormalities.
A May 1999 VA treatment record shows that there was crepitus
in the left knee; the assessment was chondromalacia, left
knee.
Additional evidence consists of the veteran's variously dated
written statements, and the written statements of certain
members of his family, in which it is contended that the
veteran's left knee disorder is more severe than the current
10 percent rating reflects.
The veteran's left knee chondromalacia is rated under
38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999). This Code
enunciates the guidelines for rating recurrent subluxation,
lateral instability, or other impairment of the knee, and
provides for a 30 percent disability rating for severe
impairment, a 20 percent disability rating for moderate
impairment, and a 10 percent disability rating for slight
impairment. Although the medical record contained no
clinical findings of subluxation or instability affecting the
left knee, slight subluxation of the left patella was noted
in a December 1996 VA radiology report. However, the current
10 percent rating takes slight subluxation into account.
Therefore, there is no basis for a disability rating in
excess of 10 percent under code 5257.
There is also medical evidence of limitation of motion of the
left knee attributable to his service-connected
chondromalacia. Specifically, a June 11, 1998 VA
compensation examination showed that the veteran's left knee
chondromalacia was manifested by limitation of extension to 9
degrees after repeated use with pain on motion. Under
38 C.F.R. § 4.71a, Diagnostic Code 5261, extension limited to
5 degrees is rated as noncompensable, extension limited to 10
degrees is rated as 10 percent disabling, and extension
limited to 15 degrees is rated as 20 percent disabling.
After repeated range of motion testing during the most recent
VA compensation examination showed that the veteran's
extension eventually became limited to 9 degrees. With
consideration of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v.
Brown, 8 Vet. App. 202 (1995), the Board finds that the
veteran's left knee disability is productive of limitation of
extension to a degree that supports a 10 percent rating. The
question thus becomes whether the veteran is entitled to a
separate 10 percent rating for the limitation of knee motion.
Except as otherwise provided in the rating schedule, all
disabilities, including those arising from a single entity,
are to be rated separately, and then all ratings are to be
combined pursuant to 38 C.F.R. § 4.25 (1999). One exception
to this general rule, however, is the anti-pyramiding
provision of 38 C.F.R. § 4.14 (1999), which states that
evaluation of the "same disability" or the "same
manifestation" under various diagnoses is to be avoided. In
Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that
the disability in that case - scarring - warranted 10 percent
evaluations under three separate diagnostic codes, none of
which provided that a veteran may not be rated separately for
the described conditions. Therefore, the conditions were to
be rated separately under 38 C.F.R. § 4.25 unless they
constituted the "same disability" or the "same manifestation"
under 38 C.F.R. § 4.14. Esteban, at 261. The critical
element cited was "that none of the symptomatology for any
one of those three conditions [was] duplicative of or
overlapping with the symptomatology of the other two
conditions." Id., at 262.
In this case, the medical evidence shows that the veteran's
left knee chondromalacia is manifested by slight subluxation,
which satisfies the criteria for a 10 percent rating under
Code 5257, and limitation of extension of 9 degrees, which
more nearly approximates a 10 degree limitation (38 C.F.R.
§ 4.7), which satisfies a 10 percent rating under Code 5261.
Since limitation of extension of the knee is not duplicative
of or overlapping with instability or subluxation of the
knee, a separate 10 percent rating is warranted. Esteban,
supra. As the medical evidence first shows the compensable
limitation of extension on June 11, 1998, the separate 10
percent rating in effective from that date. See Fenderson,
supra. There is no medical evidence to show compensable
limitation of extension or flexion (38 C.F.R. § 4.71a, Code
5260) prior to that time.
Thus, the veteran's limitation of extension clearly does not
meet the 15 degrees of limitation of extension to afford the
veteran the next higher rating of 20 degrees. The Board has
considered the slight subjective increase in weakness and
fatigue noted on the June 1998 VA examination, along with the
provisions of 38 C.F.R. §§ 4.40, 4.45, and DeLuca, supra, but
there is no objective medical evidence to show that pain,
flare-ups of pain, weakness, fatigue, incoordination, or any
other symptom results in additional functional impairment to
a degree that would support a rating in excess of 10 percent
under the range of motion diagnostic codes (5260 and 5261).
The Board has also considered Diagnostic Codes 5256, 5258,
5260, and 5262 under 38 C.F.R. § 4.71a, which provide for a
disability rating in excess of 10 percent for the left knee.
However, as the veteran does not exhibit ankylosis, semilunar
dislocation of cartilage with frequent episodes of locking,
pain, effusion, compensable limitation of flexion, nonunion,
or malunion, a rating in excess of 10 percent is not
warranted.
The Board has also considered the application of 38 C.F.R.
§ 3.321(b)(1) (1999), but finds that the evidence of record
does not present such "an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards." In this regard, the
Board notes that there has been no showing by the veteran
that his service-connected left knee disability has resulted
in marked interference with his employment or necessitated
frequent periods of hospitalizations. Therefore, in the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337 (1996); Shipwash, 8 Vet. App. at
227 (1995).
ORDER
Service connection for memory loss and fatigue, to include as
due to an undiagnosed illness is denied.
A disability rating in excess of 10 percent for left knee
chondromalacia with subluxation is denied.
A separate 10 percent rating for left knee chondromalacia
with limitation of extension is granted, effective from June
11, 1998, subject to the law and regulations governing the
payment of monetary benefits.
R. F. WILLIAMS
Member, Board of Veterans' Appeals